Commonwealth v. Owens

Opinion

Per Curiam,

Order affirmed.

Opinion by

Cercone, J.,

in Support op Per Curiam Affirmance:

I join in the court’s affirmance of the instant case on the basis of the opinion of the court below.

I do not regard Stovall v. Denno, 388 U.S. 293 (1967) as demarking a change in the law, and, therefore, I regard discussions of its impact in terms of retroactivity to be misleading at best.¹ As the Supreme Court stated in Stovall, and the lower court quoted in its opinion:

“[I]n any event the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that [the accused] was denied due process of law. This is a recognized ground of attack upon a conviction independent of any right to counsel claim. Palmer v. Peyton, 359 F.2d 199 (C.A. 4th Cir. 1966). The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” (emphasis added). Stovall v. Denno, 388 U.S. at 301-302.

Significantly, the dissent points to no cases which reached a result contrary to Stovall in the United States Supreme Court, the Third Circuit, the Pennsylvania Supreme Court, or this court. On the other hand numerous cases and articles which pre-date the Stovall decision, and were cited by the Supreme Court as authority for the result reached therein, indicated that such unreasonably suggestive identifications were indeed violations of due process. Appellant had access to those authorities and could have challenged the constitutionality of his identification. I simply do not agree that the imprimatur of the Supreme Court alone, without the citation of any prior authorities to the contrary, constitutes a “change in the law” sufficient to create an extraordinary circumstance. I, therefore, consider appellant’s failure to challenge the constitutionality of his identification in his first PCHA petition to be a waiver of that issue.

1 . I do not conceive that my former agreement with Judge Hoffman is inconsistent with the position I take today. When this appellant was previously before our court [Commonwealth v. Owens, 226 Pa. Superior Ct. 479 (1973)], the question was simply whether the lower court erred in refusing to permit him to amend his PCHA petition to show “extraordinary circumstances.” He having amended his position, I now agree with the lower court that his argument must fail.